Second chance saloon: opposing software patents

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Oppositions are becoming more popular year on year, but just how useful are they for getting rid of unwanted or inconvenient software patents? WIPR takes a look at the opposition procedures in the US and Europe to find out.

The software industry has seen its fair share of innovation, patenting and litigation, yet national regimes remain divided as to what constitutes patentable subject matter in this area. The 2010 US Bilski decision—a case involving a method of hedging risks in commodities trading—held that business methods were patentable, as long as they are not directed at abstract ideas. In Europe, computer-implemented inventions are not patentable unless they make technical contributions or solve technical problems.

Case law governing the patentability of software inventions is fairly new, but one problem afflicting the patents themselves is an age-old issue—overly broad claims. National case law in this area has caused uncertainty, but rapid innovation in the software industry is causing software patents to become old before their time.

Companies want to make their patents as broad as possible so that they can extract their maximum value. It is not uncommon for a competitor to come up with a similar product within a few years of a patent being granted. If these products read on a patent’s claims, the company has a means of challenging for the product’s share of the market.